POLYMET MINING CORP. PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (CANADA) INSTRUCTIONS TO PURCHASER
INSTRUCTIONS
TO PURCHASER
| 1. |
All
purchasers complete all the information in the boxes on page and
sign where indicated with an “X”.
|
| 2. |
If
you are an “accredited investor”, then complete Schedule “A”, the
“Accredited Investor Questionnaire” that starts on page .
The purpose of the questionnaire is to determine whether you meet
the
standards for participation in a private placement under National
Instrument 45-106.
|
| 3. |
If
you are a portfolio manager or you are not an individual (that is,
the
Purchaser is a corporation, partnership, trust or entity other than
an
individual), then complete and sign the “Corporate Placee Registration
Form” (Form 4C) that starts on page
10.
|
| 4. |
On
or before the end of the fifth business day before the Closing Date
as
defined under the Terms, the Purchaser will deliver to the Issuer
the
Subscription Agreement and all applicable schedules and required
forms,
duly executed, and payment in full for the total price of the Purchased
Securities to be purchased by the Purchaser, by wire transfer, certified
funds or bank drafts as follows:
|
| (i) |
Cheques
and bank drafts to be made payable to: PolyMet
Mining Corp.
|
| (ii) |
Wire
transfers to be forwarded to:
|
| Account name: |
| Bank: |
Royal
Bank of Canada
|
0000
Xx.
0 Xxxx,
Xxxxxxxx,
X.X.,
X0X
0X0
| Transit #: |
4800
|
| Account#: |
0000000
|
| Swift Code: |
ROYCCAT
2
|
| ABA#: |
021
0000021
|
|
ALL
SUBSCRIPTION AGREEMENTS, APPLICABLE, SCHEDULES, REQUIRED FORMS AND
PAYMENTS TO BE FORWARDED
TO:
|
2350
- 0000 XXXX XXXXXXXX XXXXXX
XXXXXXXXX,
XXXXXXX XXXXXXXX, XXXXXX X0X 0X0
This
is
page of
22
pages of a subscription agreement and related appendixes, schedules and forms.
Collectively, these pages together are referred to as the “Subscription
Agreement”.
UNIT
NON-BROKERED PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
|
TO:
|
PolyMet
Mining Corp.
(the “Issuer”), of Suite 2350 - 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0
|
Subject
and pursuant to the terms set out in the Terms on pages to
,
the
General Provisions on pages 17 to 22 and the other schedules and appendixes
attached which are hereby incorporated by reference, the Purchaser hereby
irrevocably subscribes for, and on Closing will purchase from the Issuer, the
following securities at the following price:
|
__________________________ Units
|
|
$1.40
per Unit for a total purchase price of $
___________________________________________________________
|
|
The
Purchaser owns, directly or indirectly, the following securities
of the
Issuer:
|
| _________________________________________________________________________________ |
|
[Check
if applicable]The
Purchaser is o an
insider of the Issuer
|
The
Purchaser directs the Issuer to issue, register and deliver the certificates
representing the Purchased Securities as follows:
|
REGISTRATION
INSTRUCTIONS
|
DELIVERY
INSTRUCTIONS
|
|
|
Name
to appear on certificate
|
Name
and account reference, if applicable
|
|
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Account
reference if applicable
|
Contact
name
|
|
|
Address
|
Address
|
|
|
Telephone
Number
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EXECUTED
by the Purchaser this _______ day of _____________, 2005. By executing this
Subscription Agreement, the Purchaser certifies that the Purchaser and any
beneficial purchaser for whom the Purchaser is acting is resident in the
jurisdiction shown as the “Address of Purchaser”.
|
WITNESS:
|
EXECUTION
BY PURCHASER:
|
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X
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Signature
of Witness
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Signature
of individual (if Purchaser is
an
individual)
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X
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Name
of Witness
|
Authorized
signatory (if Purchaser is
not
an
individual)
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Address
of Witness
|
Name
of Purchaser (please
print)
|
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Name
of authorized signatory (please
print)
|
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Accepted
this _____ day of ____________, 2005
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Address
of Purchaser (residence)
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Per:
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Telephone
Number
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Authorized
signatory
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E-mail
address
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By
signing this acceptance, the Issuer agrees to be bound by the Terms on pages
to
,
the
General Provisions on pages 17 to 22, and the other schedules and appendixes
incorporated by reference.
TERMS
|
Reference
date of this
Subscription Agreement |
September
21, 2005 (the “Agreement Date”)
|
The
Offering
|
The
Issuer
|
POLYMET
MINING CORP. (the “Issuer”)
|
|
Offering
|
The
offering consists of up to an aggregate of 4,000,000 units of the
Issuer
(the “Units”).
|
|
Purchased
Securities
|
The “Purchased
Securities” are Units. Each Unit consists of one previously unissued
common share, as presently constituted (a “Share”) and one-half of
one non-transferable share purchase warrant (a “Warrant”) of the
Issuer. One whole Warrant will entitle the holder, on exercise, to
purchase one additional common share of the Issuer (a “Warrant
Share”) at a price of $2.00
per Warrant Share at any time until the close of business on the
day which
is 18 months from the date of Closing,
provided that if the closing price of the Issuer’s shares as traded on the
TSX Venture Exchange (the “Exchange”) is at or exceeds $2.50 per share for
20 consecutive trading days, the Issuer has the right to accelerate
the
expiry date of the Warrants upon 30 days notice to holders thereof.
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Total
amount
|
Up
to $
__________________
|
|
Price
|
$1.40
per Unit
|
|
Warrants
|
The
Warrants will be issued and registered in the name of the
purchasers.
The
certificates representing the Warrants will, among other things,
include
provisions for the appropriate adjustment in the class, number and
price
of the Warrant Shares issued upon exercise of the Warrants upon the
occurrence of certain events, including any subdivision, consolidation
or
reclassification of the Issuer’s common shares, the payment of stock
dividends and the amalgamation of the Issuer.
The
issue of the Warrants will not restrict or prevent the Issuer from
obtaining any other financing, or from issuing additional securities
or
rights, during the period within which the Warrants may be
exercised.
|
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Use
of Proceeds
|
The
proceeds of the placement will be utilized to advance the technical
program on the NorthMet Project and to provide working
capital.
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Selling
Jurisdictions
|
The
Units may be sold in British Columbia, Alberta, Ontario and in certain
jurisdictions outside Canada as solely determined by the Company
in
accordance with available exemptions (the “Selling
Jurisdictions”).
|
|
Exemptions
|
The
offering will be made in Canada in accordance with the following
exemption
from the prospectus requirements:
|
|
|
(a)
|
the
“accredited investor” exemption (section 2.3(2) of National
Instrument 45-106).
|
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Resale
restrictions and legends
|
Pursuant
to Multilateral Instrument 45-102, the Purchased Securities will
be
subject to a four month hold period that starts to run on
Closing.
The
Purchaser acknowledges that the certificates representing the Purchased
Securities will bear the following legends:
“Unless
permitted under securities legislation, the holder of the securities
shall
not trade the securities before [date that is four months and a day
after
the Closing.]”
“Without
prior written approval of the TSX Venture Exchange and compliance
with all
applicable securities legislation, the securities represented by
this
certificate may not be sold, transferred, hypothecated or otherwise
traded
on or through the facilities of the TSX Venture Exchange or otherwise
in
Canada or to or for the benefit of a Canadian resident until [date
that is
four months and a day after the Closing].”
Purchasers
are advised to consult with their own legal counsel or advisors to
determine the resale restrictions that may be applicable to
them.
|
|
Closing
Date
|
Payment
for, and delivery of, the Units is scheduled to occur 48 hours after
TSX
Venture Exchange acceptance of the placement for filing (the “Closing
Date”).
|
|
Additional
definitions
|
In
the Subscription Agreement, the following words have the following
meanings unless otherwise indicated:
(a)
“Purchased
Securities” means the Units purchased under this Subscription
Agreement;
(b)
“Securities”
means the Shares, the Warrants and the Warrant Shares;
(c)
“Warrants”
includes the certificates representing the
Warrants.
|
The
Issuer
|
Jurisdiction
of organization
|
The
Issuer is incorporated under the laws of British
Columbia.
|
|
Stock
exchange listings
|
Shares
of the Issuer are listed on the TSX Venture Exchange
(the “Exchange”).
|
|
The
“Securities Legislation Applicable to the Issuer” is the Securities
Act
(British Columbia), the Securities
Act
(Alberta) and the Securities
Act
Ontario. The “Commissions
with Jurisdiction over the Issuer”
are the British Columbia Securities Commission, the Alberta Securities
Commission and the Ontario Securities
Commission.
|
END
OF
TERMS
Accredited
Investor Questionnaire
(Capitalized
terms not specifically defined in this Questionnaire have the meaning ascribed
to them in the Subscription Agreement to which this Questionnaire is
attached.)
In
connection with the execution of the Subscription Agreement to which this
Questionnaire is attached, the undersigned (the “Purchaser”) represents and
warrants to the Issuer that the Purchaser satisfies one or more of the
categories indicated below (please place an “X” on the appropriate
lines):
|
____
Category 1
|
a
Canadian financial institution, or an authorized foreign bank listed
in
Schedule III of the Bank
Act (Canada)
|
|
____
Category 2
|
the
Business Development Bank of Canada incorporated under the Business
Development Bank of Canada Act (Canada)
|
|
____
Category 3
|
a
subsidiary of any person or company referred to in Categories 1 or 2,
if the person or company owns all of the voting securities of the
subsidiary, except the voting securities required by law to be owned
by
directors of that subsidiary
|
|
____
Category 4
|
a
person or company registered under the securities legislation of
a
jurisdiction of Canada, as an adviser or dealer, other than a person
registered solely as a limited market dealer under one or both of
the
Securities
Act (Ontario)
or the Securities
Act (Newfoundland
and Labrador)
|
|
____
Category 5
|
an
individual registered or formerly registered under the securities
legislation of a jurisdiction of Canada, as a representative of a
person
or company referred to in Category 4
|
|
____
Category 6
|
the
Government of Canada or a jurisdiction of Canada, or any crown
corporation, agency or wholly owned entity of the government of Canada
or
a jurisdiction of Canada
|
|
____
Category 7
|
a
municipality, public board or commission in Canada and a metropolitan
community, school board, the Comite de gestion de la taxe scolaire
de
L’ile de Montreal or an intermunicipal management board in
Quebec
|
|
____
Category 8
|
any
national, federal, state, provincial, territorial or municipal government
of or in any foreign jurisdiction, or any agency of that
government
|
|
____
Category 9
|
a
pension fund that is regulated by either the Office of the Superintendent
of Financial Institutions (Canada) or a pension commission or similar
regulatory authority of a jurisdiction of Canada
|
|
____
Category 10
|
an
individual who, either alone or with a spouse, beneficially owns,
directly
or indirectly, financial assets having an aggregate realizable value
that
before taxes, but net of any related liabilities, exceeds
$1,000,000
|
|
____
Category 11
|
an
individual whose net income before taxes exceeded $200,000 in each
of the
two most recent calendar years or whose net income before taxes combined
with that of a spouse exceeded $300,000 in each of the two most recent
calendar years and who, in either case, reasonably expects to exceed
that
net income level in the current calendar year
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|
____
Category 12
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a
person, other than an individual or investment fund, that, has net
assets
of at least $5,000,000 as shown on its most recently prepared financial
statements
|
|
____
Category 13
|
an
investment fund that distributes or has distributed its securities
only
to:
|
|
(a)
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a
person that is or was an accredited investor at the time of the
distribution;
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|
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(b)
|
a
person that acquires or acquired securities in the circumstances
referred
to in sections 2.10 [Minimum
Amount Investment],
and 2.19 [Additional
Investment in Mutual Funds],
or
|
|
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(c)
|
a
person described in paragraph (i) or (ii) that acquires or acquired
securities under section 2.18 [Investment
Fund Reinvestment]
|
|
____
Category 14
|
an
investment fund that distributes or has distributed securities under
a
prospectus in a jurisdiction of Canada for which the regulator or,
in the
case of Quebec, the securities regulatory authority, has issued a
receipt
|
|
____
Category 15
|
a
trust company or trust corporation registered or authorized to carry
on
business under the Trust
and Loan Companies Act
(Canada) or under comparable legislation in a jurisdiction of Canada
or a
foreign jurisdiction, acting on behalf of a fully managed account
managed
by the trust company or trust corporation, as the case may
be
|
|
____
Category 16
|
a
person acting on behalf of a fully managed account managed by that
person,
if that person:
|
|
(a)
|
is
registered or authorized to carry on business as an adviser or
the
equivalent under the securities legislation of a jurisdiction of
Canada or
a foreign jurisdiction, and
|
|
(b)
|
in Ontario, is purchasing a security that is not a security of an investment fund; |
|
____
Category 17
|
a
registered charity under the Income
Tax Act
(Canada) that, in regard to the trade, has obtained advice from an
eligibility adviser or an adviser registered under the securities
legislation of the jurisdiction of the registered charity to give
advice
on the securities being traded
|
|
____
Category 18
|
an
entity organized in a foreign jurisdiction that is analogous to any
of the
entities referred to in Categories 1 through 4 and Category 9 in
form and function, or
|
|
____
Category 19
|
a
person in respect of which all of the owners of interests, direct
or
indirect or beneficial, except the voting securities required by
law to be
owned by directors, are persons or companies that are accredited
investors
|
|
____
Category 20
|
an
investment fund that is advised by a person registered as an adviser
or a
person that is exempt from registration as an adviser,
or
|
|
____
Category 21
|
a
person that is recognized or designated by the securities regulatory
authority or, except in Ontario and Quebec, the regulator as:
(a) an
accredited investor, or
(b) an
exempt purchaser in Alberta or British
Columbia.
|
The
statements made in this Questionnaire are true and accurate to the best of
my
information and belief and the Purchaser will promptly notify the Issuer of
any
changes in the answers.
Dated
_______________ 2005.
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X
|
||
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Signature
of individual (if Purchaser is
an
individual)
|
||
|
X
|
||
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Authorized
signatory (if Purchaser is not
an
individual)
|
||
|
Name
of Purchaser (please
print)
|
||
|
Name
of authorized signatory (please
print)
|
||
|
Official
capacity of authorized signatory (please
print)
|
For
the
purposes hereof:
| (a) |
"financial
assets "
means cash, securities and a contract of insurance, a deposit or
an
evidence of a deposit that is not a security for the purposes of
securities legislation;
|
| (b) |
"related
liabilities"
means:
|
| (i) |
liabilities
incurred or assumed for the purpose of financing the acquisition
or
ownership of financial assets; or
|
| (ii) |
liabilities
that are secured by financial
assets.
|
CORPORATE
PLACEE REGISTRATION FORM
Where
subscribers to a Private Placement are not individuals, the following
information about the placee must be provided. This Form will remain on file
with the Exchange. The corporation, trust, portfolio manager or other entity
(the “Placee”) need only file it on one time basis, and it will be referenced
for all subsequent Private Placements in which it participates. If any of the
information provided in this Form changes, the Placee must notify the Exchange
prior to participating in further placements with Exchange listed companies.
If
as a result of the Private Placement, the Placee becomes an Insider of the
Issuer, Insiders of the Placee are reminded that they must file a Personal
Information Form (2A) or, if applicable, Declarations, with the
Exchange.
| 1. |
Placee
Information:
|
| (a) |
Name:
_______________________________________________________________________
|
| (b) |
Complete
Address:
_____________________________________________________________
|
| (c) |
Jurisdiction
of Incorporation or Creation:
____________________________________________
|
| 2. |
Portfolio
Manager
|
| (a) |
Is
the Placee purchasing securities as a portfolio manager
(Yes/No)?_______________________
|
| (b) |
Is
the Placee carrying on business as a portfolio manager outside of
Canada
(Yes/No)? ________
|
| 3. |
If
the answer to 2(b) above was “Yes”, the undersigned certifies
that:
|
| (a) |
It
is purchasing securities of an Issuer on behalf of managed accounts
for
which it is making the investment decision to purchase the securities
and
has full discretion to purchase or sell securities for such accounts
without requiring the client’s express consent to a
transaction;
|
| (b) |
it
carries on the business of managing the investment portfolios of
clients
through discretionary authority granted by those clients (a “portfolio
manager” business) in ____________________ [jurisdiction], and it is
permitted by law to carry on a portfolio manager business in that
jurisdiction;
|
| (c) |
it
was not created solely or primarily for the purpose of purchasing
securities of the Issuer;
|
| (d) |
the
total asset value of the investment portfolios it manages on behalf
of
clients is not less than $20,000,000;
and
|
| (e) |
it
has no reasonable grounds to believe, that any of the directors,
senior
officers and other insiders of the Issuer, and the persons that carry
on
investor relations activities for the Issuer has a beneficial interest
in
any of the managed accounts for which it is
purchasing
|
| 4. |
If
the answer to 2(a). above was “No”, please provide the names and addresses
of control persons of the Placee:
|
|
Name
|
City
|
Province
or State
|
Country
|
The
undersigned acknowledges that it is bound by the provisions of applicable
Securities Law, including provisions concerning the filing of insider reports
and reports of acquisitions (See for example, sections 87 and 111 of the
Securities
Act (British
Columbia) and sections 176 and 182 of the Securities
Act (Alberta).
Acknowledgement
- Personal Information
“Personal
Information” means information about an identifiable individual, and includes
information contained in sections 1, 2 and 4, as applicable, of this
Form.
The
undersigned hereby acknowledges and agrees that it has obtained the express
written consent of each individual to:
| (a) |
the
disclosure of Personal Information by the undersigned to the Exchange
(as
defined in Appendix 6B) pursuant to this Form;
and
|
| (b) |
the
collection, use and disclosure of Personal Information by the Exchange
for
the purposes described in Appendix 6B or as otherwise identified
by the
Exchange, from time to time.
|
Dated
at
____________________________________ on _______________________,
2005.
|
X
|
||
|
Signature
of individual (if Purchaser is
an
individual)
|
||
|
X
|
||
|
Authorized
signatory (if Purchaser is not
an
individual)
|
|
Name
of Purchaser (please
print)
|
||
|
Name
of authorized signatory (please
print)
|
||
|
Official
capacity of authorized signatory (please
print)
|
THIS
IS
NOT A PUBLIC DOCUMENT
GENERAL
PROVISIONS
1. DEFINITIONS
1.1 In
the
Subscription Agreement (including the first (cover) page, the Terms on pages
to
,
the
General Provisions on pages 17 to 22 and the other schedules and appendixes
incorporated by reference), the following words have the following meanings
unless otherwise indicated:
|
(a)
|
“Applicable
Legislation” means the Securities Legislation Applicable to the Issuer (as
defined on page )
and all legislation incorporated in the definition of this term
in other
parts of the Subscription Agreement, together with the regulations
and
rules made and promulgated under that legislation and all administrative
policy statements, blanket orders and rulings, notices and other
administrative directions issued by the
Commissions;
|
|
(b)
|
“Closing”
means the completion of the sale and purchase of the Purchased
Securities;
|
|
(c)
|
“Closing
Date” has the meaning assigned in the
Terms;
|
|
(d)
|
“Commissions”
means the Commissions with Jurisdiction over the Issuer (as defined
on
page )
and the securities commissions incorporated in the definition of
this term
in other parts of the Subscription
Agreement;
|
|
(e)
|
“Exchange”
has the meaning assigned in the
Terms;
|
|
(f)
|
“Final
Closing” means the last closing under the Private
Placement;
|
|
(g)
|
“General
Provisions” means those portions of the Subscription Agreement headed
“General Provisions” and contained on pages 17 to
22,
|
|
(h)
|
“Private
Placement” means the offering of the Purchased Securities on the terms and
conditions of this Subscription
Agreement;
|
|
(i)
|
“Purchased
Securities” has the meaning assigned in the
Terms;
|
|
(j)
|
“Regulatory
Authorities” means the Commissions and the
Exchange;
|
|
(k)
|
“Securities”
has the meaning assigned in the
Terms;
|
|
(l)
|
“Subscription
Agreement” means the first (cover) page, the Terms on pages to
,
the General Provisions 17 to 22, and the other schedules and appendixes
incorporated by reference; and
|
|
(m)
|
“Terms”
means those portions of the Subscription Agreement headed “Terms” and
contained on pages to
.
|
1.2 In
the
Subscription Agreement, unless otherwise specified, all references to dollar
amounts are to Canadian dollars.
1.3 In
the
Subscription Agreement, other words and phrases that are capitalized have
the
meaning assigned in the Subscription Agreement.
2. REPRESENTATIONS
AND WARRANTIES OF PURCHASER
2.1 Acknowledgements
concerning offering
The
Purchaser acknowledges that:
|
(a)
|
no
securities commission or similar regulatory authority has reviewed
or
passed on the merits of the
Securities;
|
|
(b)
|
there
is no government or other insurance covering the
Securities;
|
|
(c)
|
there
are risks associated with the purchase of the
Securities;
|
|
(d)
|
there
are restrictions on the Purchaser’s ability to resell the Securities and
it is the responsibility of the Purchaser to find out what those
restrictions are and to comply with them before selling the
Securities;
|
|
(e)
|
the
Issuer has advised the Purchaser that the Issuer is relying on
an
exemption from the requirements to provide the Purchaser with a
prospectus
and to sell securities through a person registered to sell securities
under the Applicable Legislation and, as a consequence of acquiring
securities pursuant to this exemption, certain protections, rights
and
remedies provided by the Applicable Legislation, including statutory
rights of rescission or damages, will not be available to the
Purchaser;
|
|
(f)
|
no
prospectus has been filed by the Issuer with the Commissions in
connection
with the issuance of the Purchased Securities, the issuance is
exempted
from the prospectus and registration requirements of the Applicable
Legislation and:
|
|
(i)
|
the
Purchaser is restricted from using most of the civil remedies available
under the Applicable Legislation;
|
|
(ii)
|
the
Purchaser may not receive information that would otherwise be required
to
be provided to the Purchaser under the Applicable Legislation;
and
|
|
(iii)
|
the
Issuer is relieved from certain obligations that would otherwise
apply
under the Applicable Legislation;
|
2.2 Representations
by all purchasers
The
Purchaser represents and warrants to the Issuer that, as at the Agreement
Date
and at the Closing:
|
(a)
|
to
the best of the Purchaser’s knowledge, the Securities were not
advertised;
|
|
(b)
|
no
person has made to the Purchaser any written or oral
representations:
|
|
(i)
|
that
any person will resell or repurchase the
Securities;
|
|
(ii)
|
that
any person will refund the purchase price of the Purchased
Securities;
|
|
(iii)
|
as
to the future price or value of any of the Securities;
or
|
|
(iv)
|
that
any of the Securities will be listed and posted for trading on
a stock
exchange or that application has been made to list and post any
of the
Securities for trading on any stock exchange other than the Shares
and
Warrant Shares on the Exchange;
|
|
(c)
|
the
Purchaser is at arm’s length (as that term is customarily defined) with
the Issuer;
|
|
(d)
|
the
Purchaser (or others for whom it is contracting hereunder) has
been
advised to consult its own legal and tax advisors with respect
to
applicable resale restrictions and tax considerations, and it (or
others
for whom it is contracting hereunder) is solely responsible for
compliance
with applicable resale restrictions and applicable tax
legislation;
|
|
(e)
|
the
Purchaser has no knowledge of a “material fact” or “material change” (as
those terms are defined in the Applicable Legislation) in the affairs
of
the Issuer that has not been generally disclosed to the public,
except
knowledge of this particular
transaction;
|
|
(f)
|
the
offer made by this subscription is irrevocable (subject to the
Purchaser’s
right to withdraw the subscription and to terminate the obligations
as set
out in this Subscription Agreement) and requires acceptance by
the Issuer
and approval of the Exchange;
|
|
(g)
|
the
Purchaser has the legal capacity and competence to enter into and
execute
this Subscription Agreement and to take all actions required pursuant
to
the Subscription Agreement and, if the Purchaser is a corporation,
it is
duly incorporated and validly subsisting under the laws of its
jurisdiction of incorporation and all necessary approvals by its
directors, shareholders and others have been given to authorize
execution
of this Subscription Agreement on behalf of the
Purchaser;
|
|
(h)
|
the
entering into of this Subscription Agreement and the transactions
contemplated hereby will not result in the violation of any of
the terms
and provisions of any law applicable to, or the constating documents
of,
the Purchaser or of any agreement, written or oral, to which the
Purchaser
may be a party or by which the Purchaser is or may be
bound;
|
|
(i)
|
this
Subscription Agreement has been duly executed and delivered by
the
Purchaser and constitutes a legal, valid and binding agreement
of the
Purchaser enforceable against the
Purchaser;
|
|
(j)
|
the
Purchaser has been independently advised as to the applicable hold
period
imposed in respect of the Securities by securities legislation
in the
jurisdiction in which the Purchaser resides and confirms that no
representation has been made respecting the applicable hold periods
for
the Securities and is aware of the risks and other characteristics
of the
Securities and of the fact that the Purchaser may not be able to
resell
the Securities except in accordance with the applicable securities
legislation and regulatory
policies;
|
|
(k)
|
the
Purchaser is capable of assessing the proposed investment as a
result of
the Purchaser’s financial and business experience or as a result of advice
received from a registered person other than the Issuer or any
affiliates
of the Issuer;
|
|
(l)
|
if
required by applicable securities legislation, policy or order
or by any
securities commission, stock exchange or other regulatory authority,
the
Purchaser will execute, deliver, file and otherwise assist the
Issuer in
filing, such reports, undertakings and other documents with respect
to the
issue of the Securities as may be required;
and
|
|
(m)
|
the
Purchaser acknowledges that certain persons may receive a commission
from
the Issuer in connection with this Private
Placement.
|
|
(n)
|
the
Purchaser is not a “control person” of the Issuer as defined in the
Applicable Legislation, will not become a “control person” by virtue of
this purchase of any of the Securities, and does not intend to
act in
concert with any other person to form a control group of the
Issuer;
|
|
(o)
|
the
offer was not made to the Purchaser when he was in the United States
and
at the time the Purchaser’s buy order was made, the Purchaser was outside
the United States;
|
|
(p)
|
the
Purchaser is not a U.S. Person;
and
|
|
(q)
|
the
Purchaser is not and will not be purchasing Units for the account
or
benefit of any U.S. Person.
|
2.3 Reliance,
indemnity and notification of changes
The
representations and warranties in the Subscription Agreement (including the
first (cover) page, the Terms on pages 1 to
2,
the
General Provisions on pages 15 to 17,
and the
other schedules and appendixes incorporated by reference) are made by the
Purchaser with the intent that they be relied upon by the Issuer in determining
its suitability as a purchaser of Purchased Securities, and the Purchaser
hereby
agrees to indemnify the Issuer against all losses, claims, costs, expenses
and
damages or liabilities which any of them may suffer or incur as a result
of
reliance thereon. The Purchaser undertakes to notify the Issuer immediately
of
any change in any representation, warranty or other information relating
to the
Purchaser set forth in the Subscription Agreement (including the first (cover)
page, the Terms on pages 1 to
2,
the
General Provisions on pages 15 to 17,
and the
other schedules and appendixes incorporated by reference) which takes place
prior to the Closing.
2.4 Survival
of representations and warranties
The
representations and warranties contained in this Section will survive the
Closing.
3. REPRESENTATIONS
AND WARRANTIES OF THE ISSUER
3.1
The
Issuer warrants and represents that:
|
(a)
|
the
Issuer and its material subsidiaries, if any, are valid and subsisting
corporations duly incorporated and in good standing under the laws
of the
jurisdictions in which they are incorporated, continued or
amalgamated;
|
|
(b)
|
the
Issuer and its material subsidiaries, if any, are duly registered
and
licensed to carry on business or own property in the jurisdictions
in
which they carry on business or own property where so required
by the laws
of that jurisdiction;
|
|
(c)
|
the
Issuer is authorized to issue unlimited
common shares of which 84,396,206 were
issued as fully paid and non-assessable as of September 15,
2005;
|
|
(d)
|
the
Issuer will reserve or set aside sufficient common shares in its
treasury
to issue the Shares, and Warrant Shares,
|
|
(e)
|
the
issue and sale of the Securities by the Issuer does not and will
not
conflict with, and does not and will not result in a breach of,
any of the
terms of its incorporating documents or any agreement or instrument
to
which the Issuer is a party;
|
|
(f)
|
neither
the Issuer or its subsidiaries, if any, is a party to any actions,
suits
or proceedings which could materially affect its business or financial
condition, and no such actions, suits or proceedings are contemplated
or
have been threatened;
|
|
(g)
|
there
are no judgments against the Issuer or any of its subsidiaries,
if any,
which are unsatisfied, nor are there any consent decrees or injunctions
to
which the Issuer or any of its subsidiaries, if any, is
subject;
|
|
(h)
|
this
Agreement has been duly authorized by all necessary corporate action
on
the part of the Issuer
|
|
(i)
|
the
common shares of the Issuer are listed for trading on the Exchange
and no
order ceasing, halting or suspending trading in securities of the
Issuer
or prohibiting the sale of such securities has been issued to and
is
outstanding against the Issuer or its directors, officers or promoters
or
against any other companies that have common directors, officers
or
promoters and no investigations or proceedings for such purposes
are
pending or threatened;
|
4. CLOSING
4.1 The
Purchaser acknowledges that, although Purchased Securities may be issued
to
other purchasers under the Private Placement concurrently with the Closing,
there may be other sales of Purchased Securities under the Private Placement,
some or all of which may close before or after the Closing. The Purchaser
further acknowledges that there is a risk that insufficient funds may be
raised
on the Closing to fund the Issuer’s objectives, and that further closings may
not take place after the Closing.
4.2 On
or
before the end of the fifth business day before the Closing Date, the Purchaser
will deliver to the Issuer the Subscription Agreement and all applicable
schedules and required forms, duly executed, and payment in full for the
total
price of the Purchased Securities to be purchased by the Purchaser, by wire
transfer, certified funds or bank drafts.
4.3 The
Purchaser’s obligation to complete the purchase and sale of the Purchased
Securities shall be subject to the following conditions:
|
(a)
|
the
representations and warranties made by the Issuer in this Subscription
Agreement shall be true and correct as of the Closing Date (except
for
representations and warranties that speak as of a specific date)
and the
covenants of the Issuer shall have been performed, satisfied and
complied
with, where applicable, on or before the Closing
Date;
|
|
(b)
|
the
Issuer shall have delivered to the Purchaser, or to the direction
of the
Purchaser, the following items:
|
|
(i)
|
a
copy of this Subscription Agreement duly executed by the
Issuer.
|
5. MISCELLANEOUS
5.1 The
Purchaser agrees to sell, assign or transfer the Securities only in accordance
with the requirements of applicable securities laws and any legends placed
on
the Securities as contemplated by the Subscription Agreement.
5.2 The
Purchaser hereby authorizes the Issuer to correct any errors in, or complete
any
minor information missing from any part of the Subscription Agreement and
any
other schedules, forms, certificates or documents executed by the Purchaser
and
delivered to the Issuer in connection with the Private Placement.
5.3 The
Issuer may rely on delivery by fax machine of an executed copy of this
subscription, and acceptance by the Issuer of such faxed copy will be equally
effective to create a valid and binding agreement between the Purchaser and
the
Issuer in accordance with the terms of the Subscription Agreement.
5.4 Without
limitation, this subscription and the transactions contemplated by this
Subscription Agreement are conditional upon and subject to the Issuer’s having
obtained such regulatory approval of this subscription and the transactions
contemplated by this Subscription Agreement as the Issuer considers
necessary.
5.5 This
Subscription Agreement is not assignable or transferable by the parties hereto
without the express written consent of the other party to this Subscription
Agreement.
5.6 Time
is
of the essence of this Subscription Agreement and will be calculated in
accordance with the provisions of the Interpretation
Act
(British
Columbia).
5.7 Except
as
expressly provided in this Subscription Agreement and in the agreements,
instruments and other documents contemplated or provided for in this
Subscription Agreement, this Subscription Agreement contains the entire
agreement between the parties with respect to the Securities and there are
no
other terms, conditions, representations or warranties whether expressed,
implied, oral or written, by statute, by common law, by the Issuer or by
anyone
else.
5.8 The
parties to this Subscription Agreement may amend this Subscription Agreement
only in writing.
5.9 This
Subscription Agreement enures to the benefit of and is binding upon the parties
to this Subscription Agreement and their successors and permitted
assigns.
5.10 A
party
to this Subscription Agreement will give all notices to or other written
communications with the other party to this Subscription Agreement concerning
this Subscription Agreement by hand or by registered mail addressed to the
address given on page 1.
5.11 This
Subscription Agreement is to be read with all changes in gender or number
as
required by the context.
5.12 This
Subscription Agreement will be governed by and construed in accordance with
the
internal laws of British Columbia (without reference to its rules governing
the
choice or conflict of laws), and the parties hereto irrevocably attorn and
submit to the exclusive jurisdiction of the courts of British Columbia with
respect to any dispute related to this Subscription
Agreement.
Acknowledgement
- Personal Information
“Personal
Information” means any information about an identifiable individual, and
includes information provided by the Purchaser on the cover page and in the
forms, schedules and appendices forming part of the Subscription
Agreement.
The
undersigned Purchaser provides its written consent to:
| (a) |
the
disclosure of Personal Information by the Issuer to the Exchange
(as
defined below) and to any applicable securities regulatory authorities;
and
|
| (b) |
the
collection, use and disclosure of Personal Information by the Exchange
for
the purposes described below or as otherwise identified by the
Exchange,
from time to time.
|
Dated
at
____________________________________ on _______________________, 2005.
|
X
|
||
|
Signature
of individual (if Purchaser is
an
individual)
|
||
|
X
|
||
|
Authorized
signatory (if Purchaser is not
an
individual)
|
||
|
Name
of Purchaser (please
print)
|
||
|
Name
of authorized signatory (please
print)
|
||
|
Official
capacity of authorized signatory (please
print)
|
TSX
Venture Exchange Inc. and its affiliates, authorized agents, subsidiaries and
divisions, including the TSX Venture Exchange (collectively referred to as
“the
Exchange”) collect Personal Information in certain Forms that are submitted by
the individual and/or by an Issuer or Applicant and use it for the following
purposes:
| (a) |
to
conduct background checks;
|
| (b) |
to
verify the Personal Information that has been provided about each
individual;
|
| (c) |
to
consider the suitability of the individual to act as an officer,
director,
insider, promoter, investor relations provider or, as applicable,
an
employee or consultant, of the Issuer or
Applicant;
|
| (d) |
to
consider the eligibility of the Issuer or Applicant to list on
the
Exchange;
|
| (e) |
to
provide disclosure to market participants as to the security holdings
of
directors, officers, other insiders and promoters of the Issuer,
or its
associates or affiliates;
|
| (f) |
to
conduct enforcement proceedings; and
|
| (g) |
to
perform other investigations as required by and to ensure compliance
with
all applicable rules, policies, rulings and regulations of the
Exchange,
securities legislation and other legal and regulatory requirements
governing the conduct and protection of the public markets in
Canada.
|
As
part of
this process, the Exchange also collects additional Personal Information
from
other sources, including but not limited to, securities regulatory authorities
in Canada or elsewhere, investigative, law enforcement or self-regulatory
organizations, regulations services providers and each of their subsidiaries,
affiliates, regulators and authorized agents, to ensure that the purposes
set
out above can be accomplished.
The
Personal Information the Exchange collects may also be disclosed:
| (a) |
to
the agencies and organizations in the preceding paragraph, or as
otherwise
permitted or required by law, and they may use it in their own
investigations for the purposes described above;
and
|
| (b) |
on
the Exchange’s website or through printed materials published by or
pursuant to the directions of the
Exchange.
|
The
Exchange may from time to time use third parties to process information and/or
provide other administrative services. In this regard, the Exchange may share
the information with such third party service providers.
END
OF SUBSCRIPTION AGREEMENT
